Abhishek
Admissibility of Evidence of Child Witness
Abhishek Rathee 14 Mar 2020

Admissibility of Evidence of Child Witness

Introduction

Nowadays, there is a large backlog of cases pending before the Indian courts and, in order to resolve cases quickly and efficiently, the courts need all the tools to allow them to fulfill their responsibilities and obligations. There has been continuous development in modern technology, and it is not mandatory for judges to have knowledge of all the issues involved. It is important to note that, for every judicial reform in India or outside India, it is up to the judges and the advocates to collect the facts and testimony of each and every witness, as the witness is the primary source of proof in the courts. This is therefore for the bench of justice to form their own view on the basis of that view. A witness is a person who gives an oath or testimony before some judicial body, e.g. an expert opinion. The child witness is the one who, at the time of the testimony, is below the age of 18 years. In particular, the legislation in India has not accepted the age limit of a child in order to be a qualified witness. In India, any child who may be able to meet the test of competence may become a witness, and there is no law banning children from being witnesses.

Analysis

As per Section 118 of the Indian Evidence Act, any person, including a child or an elderly person, other than a tender year, an extreme old age, a disease, whether of body or mind, or any other similar cause, is competent to be considered a witness in the court of law if he or she is able to understand the questions put to him or to provide reasonable answers to those questions.

In order to recognize a child's competence as a witness, the court is performing a examination called the "Voir Dire" examination. In this test, the judge directly asks the child questions which are not applicable to the case before the start of the trial, in order to determine whether or not the child is reasonable and of a sound mind. Any of the questions put to the court are the name of the child, Residence, date of birth, name of school, etc. When the Court of Justice is completely pleased with the responses it has provided and with the investigation it has carried out, it shall be granted permission to testify as a witness before the court of law.

Despite arguments made by the Supreme Court in various cases, the provisions of Section 114 of the Indian Evidence Act include a certain amount of corroboration of the testimony of witnesses. Section 114 indicates that the requirement for corroborating proof is higher if a child, in particular a tender year, is unable to remember and a man of ordinary prudence (sound person) provides an response when a certain investigation / investigation is made. In other words, it is often called poor proof. At the other hand, the proof needed is much lower for a child witness if he or she is able to understand and provide a reasonable answer to the questions posed to him or her.

For most cases, the child witness is admissible as testimony for criminal cases before the court of law. For example, the Juvenile Justice Act 2012, and the Protection of Children from Sexual Offences Act,2019. A child witness shall be held under separate judicial protection, so as not to damage either of the accused or any of the perpetrators by bringing them to trial. In order to identify the accused in the court of law, the child witness is admissible as evidence. For certain cases, they are not in a position to recognize the perpetrators, and so, in these situations, if the judges find fit and necessary, they provide the victim with the benefit of doubt.

A multidisciplinary team including the prosecutor, executives and social activists will be educated by the government and used in the investigation and prosecution of cases where the child is believed to be a victim or witness of violence. An officer who specializes in criminal cases must be assigned to deal with all aspects of a case involving an alleged child victim or witness in order to minimize the number of times a child is called upon to recall the incidents involved in the case and to build a sense of confidence and faith in the child.

Every action taken by the court, whether the Juvenile Justice Court or the Protection of Children from Sexual Abuse Court, will be taken by the court to ensure a speedy trial in order to minimize the difficulty and overall strain of the case on the part of the victim. Such a rapid trial is required in order to prevent adverse effects on the parties concerned. The court will conclude the trial within a reasonable amount of time, not only for the social and moral well-being of the infant, but also for society as a whole. It is up to the judges to ensure the timely and successful application of the law after hearing the arguments of all parties so as not to prolong the granting of justice as it is claimed that "Justice delayed is justice denied."

In order to enforce some constitutional or procedural changes to the laws passed under the Indian Evidence Act, 1872 on the admissibility of child witness testimony, where a child may have been abused, threatened or harassed by an attacker or may have been deemed a witness in a court of law, such a bill should be introduced in both houses of Parliament. The State Government and the Central Government should devise and enforce these awareness programs in order to develop their mental ability, handle stress and the the trauma experienced by them during the court proceeding. If required, the rules and procedures in Parliament should also be amended.

The media as a whole plays a very important role in each and every nation in this world. It is their duty to report any incident in every part of this country on the social, economic, political and cultural well-being of citizens. It is their responsibility to report and publish news on crimes committed against women and children and also, where they have been witnesses in court, on any general awareness programs developed for them by any state or central government. The public has the right to know and even to lodge a FIR in the police station against any attackers for misbehavior against these juveniles.

It is also recommended that the court should create its own investigation / monitoring committee to collect the facts and documentation supporting the written statements and records submitted by the counsel of the parties concerned. All papers, either with a lawyer or with a court of law, must be kept private. The Special Investigation Team (SIT) is also appointed by the central government to collect a significant amount of valuable information from the child in such cases where he / she has suffered a mental trauma after finding such an accident. The Central Bureau of Investigation (CBI) and the Central Vigilance Commission (CVC) are also named. For certain cases, if the child witness is admitted to the hospital because of the injuries he sustained when he was at the victim's accident site, the high court can also move the bench for the testimony of the child witness. This is also proposed that the State and the central government set up fast-track courts to conclude the trial (fast trial) within 3 mts from the date of such an accident. 

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